The oil industry will be able to draw water from the Little Missouri State Scenic River for hydraulic fracturing after North Dakota officials lifted an eight-week-old moratorium on industrial water permits, raising concerns from some conservationists about the impact to the Badlands.

The issue of allowing the oil industry to access water from the scenic river came up for discussion this spring after a State Water Commission hydrologist discovered the state had been granting water permits for fracking and other uses in violation of a long-forgotten state law.

State legislators voted during the recent session to change the law, but Gov. Doug Burgum issued a moratorium on May 3 that suspended temporary water permits along much of the Little Missouri while the matter was studied.

On Thursday, Burgum and other members of the State Water Commission voted to lift that moratorium, adopting a new policy that allows temporary water permits on the scenic river for oilfield and other industrial uses.

The policy is effective immediately, but drought conditions in western North Dakota may prevent new permits from being issued this season.

“It’s questionable whether there’s even sufficient water supply left in the river to provide water for new permits,” said State Engineer Garland Erbele.

Some in attendance at the meeting, which stretched into the evening Thursday, said afterward they were disappointed with the commission's action and the lack of opportunity for public input on the new policy.

“We really did have high hopes for this governor and that he would be a friend of our land and water,” said Laura Anhalt, of Bismarck, a board member for the Badlands Conservation Alliance. “We need somebody in a very, very high place to stand up for the land and water. There’s nobody out there doing that.”

But last week’s meeting was not the final word for the Little Missouri, which flows through the rugged Badlands terrain in the north and south units of Theodore Roosevelt National Park.

Burgum also is reinstating the Little Missouri River Commission, an advisory group that is required by law but hasn’t met in a decade. Burgum, who is chairman of the State Water Commission, said he wants to revisit the matter after the group, which will include local landowners, has weighed in.

“Because of the scenic nature of the Little Missouri River, there’s a lot of people in the state that have an interest, rightfully so, about the nature and the preservation of this river,” Burgum said.

Illegal water permits

Concerns about energy development in 1975 prompted North Dakota lawmakers to pass the Little Missouri State Scenic River Act, allowing agricultural water permits for the river but prohibiting industrial use.

At the time, the concerns related to a proposed coal gasification plant, Erbele said. But by 1990, the commission began issuing industrial water permits for the Little Missouri, unaware of the 1975 law, he said.

“The law basically lay unused and over time was forgotten,” Erbele said.

Since 1990, more than 600 temporary water permits were issued for the Little Missouri River for industrial uses in violation of the law. About half were for oilfield use and the other half were for uses such as road construction and dust control on roads, said Jon Patch, director of water appropriations.

This spring, a hydrologist discovered the 1975 law while reviewing a permit application, Patch said.

Burgum said during the meeting it’s “unfortunate” the state had a practice that went on for decades that was against the law. But he credited staff for promptly bringing it to the attention of policymakers.

After lawmakers voted last session to add temporary water permits to the 1975 law, Burgum signed the bill but immediately suspended all industrial water permits upstream of the Long X Bridge near Watford City. The moratorium included the area that stretches from the North Unit of Theodore Roosevelt National Park to the South Dakota border. Industrial permits downstream of the Long X Bridge, which is where most of the oilfield permits have been granted, were not suspended.

New policy

At Burgum’s request, staff researched the issue and presented the State Water Commission four options for consideration:

- Continue with the moratorium Burgum set in May.

- Grant temporary water permits only for minor industrial uses, such as road construction and dust control.

- Allow industrial use of the Little Missouri from Sept. 15 through May 15, outside of the tourist and farm irrigation season.

- Allow industrial permits for the river year round.

Staff recommended the fourth option, and the Water Commission voted 7-1 in favor of it.

Patch, who presented the recommendation, said if industrial permits are not allowed, oil companies will instead truck water to the well sites, causing road damage, dust problems and increasing the risk of traffic crashes.

Oil companies use an average of 8 million to 10 million gallons of water for each Bakken well for hydraulic fracturing, according to the Department of Mineral Resources.

One company with an application pending anticipates needing 11,000 truckloads through the back roads of the Badlands if the permit is denied, Patch said.

If the drought continues, it’s unlikely the commission will issue any temporary permits out of the Little Missouri, Erbele said.

Burgum emphasized that the industrial permits are temporary, issued for no more than 12 months at a time, and can be canceled by the state engineer at any time. He also pointed to statistics showing that agriculture accounts for most of the water use on the river.

The only dissenting vote on the policy came from Deputy Agriculture Commissioner Tom Bodine, who was sitting in for Agriculture Commissioner Doug Goehring.

Bodine, who said he preferred that Goehring be the one to vote on a policy change, said he thinks permit decisions should only be based on water flows, not factors such as protecting the viewshed.

Public comment was not allowed at the meeting.

Jan Swenson, executive director of the Badlands Conservation Alliance, said she thinks the authors of the Little Missouri State Scenic River Act would be “stunned.”

“The spirit of the act, to me, suggests that they did not want to see the Little Missouri State Scenic River and the surrounding Badlands and prairie landscape become an industrial zone,” said Swenson, who attended the meeting. “It appears to me that North Dakota values, politically at least, have changed.”

Swenson fears that allowing water from the Little Missouri to be used for fracking will lead companies to develop more oil wells near the river, raising the potential for spills in the river and its tributaries.

Burgum said his comfort level with the policy depends on the Little Missouri River Commission being reactivated. The advisory group will include adjacent landowners from counties near the river, with members appointed by local county commissions. The group is being formed and could hold its first meeting in August. Erbele said the meeting will also allow for public comment.

The last recorded meeting of the advisory commission was in 2007.

Anhalt said she was disappointed the commission chose “the most severe, severe option” and hopes the public can provide input when it’s revisited.

“The Little Missouri, it’s a sweet, delicate little river that needs our help,” Anhalt said.

(Reach Amy Dalrymple at 701-250-8267 or Amy.Dalrymple@bismarcktribune.com)

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